SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3182- 21

STATE OF NEW JERSEY Plaintiff-Respondent,

v. MICHAEL W. SANDERS, a/k/a MICHAEL WILLIAMS, MICHAEL WILLIAM, MIKE WILLIAMS, and MIKE SANDERS, Defendant-Appellant.

_________________________

Submitted September 27, 2023

– Decided December 7, 2023 Before Judges Haas and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 16

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- 2408. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson David Harkov, Designated Counsel, on the brief). William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Mario Christopher Formica,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3182

- 21 Chief Counsel to the Prosecutor, of counsel; Linda A nne Shashoua, on the brief).

PER CURIAM Defendant Michael Sanders appeals from the April 20 , 2022, Law Division order denying his petition for post -conviction relief (PCR) without an evidentiary hearing. We affirm. We glean these facts from the record. On October 1 9, 2016, defendant was indicted on one count of first-degree armed rob bery, N.J.S.A. 2C:15- 1(a)(2). On January 19, 2017, defendant entered a non -negotiated guilty plea to the charge , see R. 3:9 -3(c), and testified during his plea colloquy that he robb ed a bank on July 28, 2016, while threatening the tell er that he had a gun in his waistband. The teller gave defendant over $600 in cash. Because he had been

a bank customer and his identity was not obscured, ba nk employees recognized defendant, who subsequently turned himself in volun tarily and confessed after being administered Miranda 1 warnings. Defendant had three prior robbery convictions and w as on parole for the

latest conviction when he committed the offense. A s a result, the State objected to the non-negotiated plea and sought a fifteen-year prison sentence, subject to

1 Miranda v. Arizona, 384 U.S. 436 (1966).3 A- 3182

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the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 . Nonetheless, the trial court gave a conditional indication that it would s entence defendant to a twelveyear NERA sentence, concurrent to the parole violat ion sentence he was already serving, with credit for time served as determined by the court. During the plea colloquy, defendant confirmed his u nderstanding of the

terms of his guilty plea as discussed in open court and as memorialized in the plea forms. Defendant acknowledged his potential e xposure to a mandatory extended term sentence of life in prison, N.J.S.A. 2C:43-7.1, and his understanding that if the court decided "the intere sts of justice would [not] be served" by the imposition of a twelve-year NERA sen tence, R. 3:9 -3(c), he would have the option of withdrawing his guilty ple a. After ensuring that the plea complied with the requirements of Rule 3:9 -2, the court accepted defendant's guilty plea and scheduled sentencing. At the March 3, 2017, sentencing hearing, the court found aggravating factors three, six, and nine based on defendant's h igh risk of re-offense, extensive prior criminal history, and need for dete rrence , and mitigating factor twelve based on defendant's voluntary surrender and confession. See N.J.S.A. 2C:44-1(a)(3), (6), (9), (b)(12). The court senten ced defendant to twelve ye ar s of imprisonment, subject to NERA, for the armed rob bery, to run concurrent4 A- 3182

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with the parole violation sentence. The court also awarded 85 days of jail credit,

and 150 days of gap-time credit. See State v. C.H., 228 N.J. 111, 117 (2017) (explaining that only jail credits reduce a parole ineligibility term as well as the underlying sentence imposed). Defendant did not file a direct appeal. However, defendant filed a timely PCR petition, supplemented by assigned counsel's br ief. In his PCR petition and brief, among other things, defendant asserted h is attorney was ineffective by failing to explain the difference between jail and gap-time credit. According to defendant, he pled guilty expect ing to receive all 235 days in custody as jail credit but only received 85 days of jail credit. Following oral argument conducted on March 23, 2022 , the PCR court issued a written decision dated April 20, 2022, den ying defendant's PCR petition without an evidentiary hearing. The judge reviewed the factual background and procedural history of the case, applied the governi ng legal principles, and concluded defendant failed to establish a prima fac ie claim of ineffective assistance of counsel (IAC). This appeal followed. On appeal, defendant raises the following points fo r our consideration:

POINT ONE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN5 A- 3182

- 21 EVIDENTIARY HEARING BECAUSE THERE WAS NO EVIDENCE IN THE RECORD THAT PLEA COUNSEL EVER EXPLAINED TO DEFENDANT THAT HE WOULD NOT RECEIVE JAIL CREDIT FOR MOST OF THE TIME HE WAS INCARCERATED PRIOR TO SENTENCING AND ANY DISCUSSIONS BETWEEN COUNSEL AND DEFENDANT THAT TOOK PLACE COULD ONLY BE REVEALED THROUGH AN EVIDENTIARY HEARING.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED WHEN IT FAILED TO CONCLUDE THAT AS A RESULT OF PLEA COUNSEL'S FAILURE TO ADVISE DEFENDANT THAT HE WOULD NOT RECEIVE FULL JAIL CREDIT FOR THE TIME HE SERVED IN CUSTODY PRIOR TO SENTENCING, COMBINED WITH HIS FAILURE TO EXPLAIN TO DEFENDANT THE DIFFERENCE BETWEEN JAIL CREDIT AND GAP-TIME CREDIT, THAT DEFENDANT ENTERED AN INVOLUNTARY GUILTY PLEA, WITHOUT A FULL UNDERSTANDING OF ITS CONSEQUENCES, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. "[W]e review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hea ring." State v. Brewster , 429 N.J. Super. 387, 401 (App. Div. 2013). "If the court perceives that holding an evidentiary hearing will not aid the court's ana lysis of whether the defendant6 A- 3182

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is entitled to [PCR], . . . then an evidentiary hearing ne ed not be granted." State v. Marshall, 148 N.J. 89, 158 (1997) (citations omi tted). An evidentiary hearing is only required when a defe ndant establishes "a prima facie case in support of [PCR]," the court de termines that there are "material issues of disputed fact that cannot be re solved by reference to the existing record," and the court determines that "an evidentiary hearing is necessary to resolve the claims" asserted. State v . Porter, 216 N.J. 343, 354 (2013) (alteration in original) (quoting R. 3:22 -10(b)). "[W]here . . . no evidentiary hearing was conducted," as here, "we ma y review the factual inferences the [trial] court has drawn from the doc umentary record de novo," and "[w]e also review de novo the court's conclusio ns of law." State v. Blake , 444 N.J. Super. 285, 294 (App. Div. 2016). "To establish a prima facie case, defendant must de monstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:2 2- 10(b). To establish a prima facie IAC claim, a def endant must demonstrate "by a preponderance of the credible evidence," State v. Echols, 199 N.J. 344, 357 (2009), that his or her attorneys' performance fell below the objective standard

of reasonableness set forth in Strickland v. Washin gton, 466 U.S. 668, 6877 A- 3182

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(1984), and adopted by our Supreme Court in State v . Fritz, 105 N.J. 42, 49-58 (1987), and that the outcome would have been differ ent without the purported deficient performance. Stated differently, a defendant must show that: (1) counsel's performance was deficient; and (2) the de ficient performance prejudiced the defense

. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. To establish the prejudice prong to set aside a guilty plea based on IAC, a defendant must show "that there is a reasonable pro bability that, but for counsel's errors, [the defendant] would not have pl ed guilty and would have insisted on going to trial." State v. DiFrisco, 13 7 N.J. 434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52 , 59 (1985)). To that end, "'a [defendant] must convince the court that a decision to reject the plea bargain'" and "insist on going to trial" would have been "'ra tional under the circumstances.'" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (20 10)). That determination should be "based on evidence, not speculation." Ib id. Failure to meet either prong of the two -prong Strickland/Fritz test results in the denial of a petition for PCR. State v. Parker, 212 N.J. 269, 280 (2012) (citing Echols, 199 N.J. at 358). That said, "courts are permitted leeway to

choose to examine first whether a defendant has bee n prejudiced, and if not, to8 A- 3182

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dismiss the claim without determining whether couns el's performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350 (2012) (citation omitted) (citing Strickland, 466 U.S. at 697). Applying the se principles, we discern no abuse of discretion in the PCR judge's denial of defendant's PCR petition without an evidentiary hearing, and we affirm the denial substantially for the reasons stated in the judge's cogent written opinion. Even if his attorney was deficien t, defendant cannot show it

would have been rational under the circumstances to reject the plea offer when he was facing the possibility of mandatory life imp risonment and the specter of overwhelming evidence of guilt. See State v. Rount ree, 388 N.J. Super. 190, 215 (App. Div. 2006) (rejecting defendant's IAC cla im based only on

defendant's "'bald assertions'" that his "misunders tanding" of gap-time credit caused him to turn down an offer (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999))). Thus, defendant faile d to establish the prejudice prong to warrant PCR relief or an evidentiary heari ng. Affirmed.